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New Hampshire: Board Errs in Failing to Utilize “Increased Risk” Test

November 08, 2018 (1 min read)

The Supreme Court of New Hampshire vacated and remanded a decision of the state’s Compensation Appeals Board that denied a personal care service representative’s request for reimbursement for medical treatment and workers' compensation benefits where evidence showed that the worker slipped on stairs at the home of a disabled person to whom she had been assigned. The Court ruled that the Board erred in failing to utilize the “increased risk” test to determine whether the worker’s injuries arose out of and in the course of the employment. The Court stressed that in Appeal of Margeson, 162 N.H. 273, 277, 27 A.3d 663 (2011), it had adopted the "increased-risk test" to determine whether an employee may recover from an injury resulting from a neutral risk. Under the increased-risk test, an employee may recover if her injury results from “a risk greater than that to which the general public is exposed.” The Court added that even if the risk faced by the employee is not qualitativelypeculiar to the employment, the injury may be compensable as long as she faces an increased quantityof a risk. Here, the Board found that, as part of her job duties, the claimant constantly walked up and down stairs and went into the garage frequently to retrieve cleaning products and household supplies and to deposit the trash. There was also evidence that the stairs were of an unusual height and noncompliant with the applicable building code. The Board should have considered these factors as part of the increased risk analysis.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Appeal of Sirles, 2018 N.H. LEXIS 210(Nov. 2, 2018)

See generally Larson’s Workers’ Compensation Law, § 3.03.

Source:Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law